Judge: Robert B. Broadbelt, Case: 21STCV44419, Date: 2023-01-25 Tentative Ruling

Case Number: 21STCV44419    Hearing Date: January 25, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Defendants Edgardo Garcia and Edgardo Garcia Attorney at Law, Inc.

RESPONDING PARTY:       Plaintiff Michael Dunlap

Motion for Summary Judgment

The court considered the moving, opposition, and reply papers filed in connection with this motion.

REQUEST FOR JUDICIAL NOTICE

The court denies Plaintiff’s request for judicial notice.  (Evid. Code, § 452, subd. (h).)  The court notes that it may still consider the exhibits submitted in support of Plaintiff’s request.  (Code Civ. Proc., § 437c, subd. (c) [the court shall consider “all of the evidence set forth in the papers”].)

EVIDENTIARY OBJECTIONS 

The court declines to rule on Defendants’ evidentiary objections filed on January 18, 2023, because the objections are directed to evidence that is not material to the court’s disposition of this motion.  (Code Civ. Proc., § 437c, subd. (q).)

LEGAL STANDARD

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant or cross-defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  “Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  “If the plaintiff cannot do so, summary judgment should be granted.”  (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)  “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Id. at p. 467; Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

1.     First Cause of Action for Professional Negligence

“In California, ‘[t]he elements of a legal malpractice action are: “(1) the duty of the [attorney] to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the [attorney’s] negligence.”’”  (E-Pass Technologies, Inc. v. Moses & Singer, LLP (2010) 189 Cal.App.4th 1140, 1148.)

The court finds that Defendants have not met their burden of showing that the first cause of action for professional negligence has no merit because Defendants have not shown that the element of breach of duty cannot be established.

Defendants contend that they satisfied their duty to Plaintiff by properly limiting the scope of their representation, and introduce (1) the parties’ retainer agreement, (2) a letter sent to Plaintiff reiterating the scope of representation, and (3) the declarations of defendant Edgardo Garcia (“Garcia”) and a secretary for Defendants.

“[A]n attorney who undertakes one matter on behalf of a client owes that client the duty to at least consider and advise the client if there are apparent related matters that the client is overlooking and that should be pursued to avoid prejudicing the client’s interests.”  (Janik v. Rudy, Exelrod & Zieff (2004) 119 Cal.App.4th 930, 940.)  “Thus, a lawyer who signs an application for adjudication of a workers’ compensation claim and a lawyer who accepts a referral to prosecute the claim owe the claimant a duty of care to advise on available remedies, including third party actions.”  (Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1687.)  If an attorney “elects to limit or prescribe his representation of the client, i.e., to a workers’ compensation claim only without reference or regard to any third party or collateral claims which the client might pursue if adequately advised, then counsel must make such limitations in representation very clear to his client.”  (Ibid.)  

First, Defendants present the “Attorney Retainer Agreement [¶] Worker’s Compensation” (the “Retainer Agreement”) executed by Plaintiff and Wallace & Garcia, LLP on March 25, 2016.  (Garcia Decl., Ex. 1.)  The Retainer Agreement provides for Defendants’ representation of Plaintiff before the Workers’ Compensation Appeals Board and the Vocational Rehabilitation Unit concerning Plaintiff’s February 24, 2016 workplace injury “ONLY.”  (Garcia Decl., Ex. 1, Retainer Agreement, p. 1, ¶ 1.)  The Retainer Agreement also includes a provision entitled “LIMITATION PERIOD TO COMMENCE LEGAL ACTION IN COURT OTHER THAN THE WORKERS’ COMPENSATION APPEALS BOARD,” which advises the client (i.e., Plaintiff) that (1) when a person is injured due to the negligence or legal fault of another, there is a possibility that the injured person may be able to recover damages from those whose fault contributed to causing the injury, which may be recovered in a legal proceeding; (2) Defendants do not represent Plaintiff and have not undertaken to advise Plaintiff concerning the possibility of recovering damages other than obtaining benefits before the Workers’ Compensation Appeals Board; (3) Plaintiff should discuss with another attorney the possibility that Plaintiff may benefit from pursuing a lawsuit to recover damages; (3) a claim for damages “may be lost forever” if the appropriate documents are not filed within the proper time limit; and (4) no action has been or will be taken by Defendants to stop, toll, or protect Plaintiff’s rights from the expiration of the statute of limitations period.  (Garcia Decl., Ex. 1, Retainer Agreement, pp. 1-2, ¶ 2.)  Finally, the Retainer Agreement states that Defendants are not representing Plaintiff “on any other matter” and, specifically, are not representing Plaintiff in any civil action other than before the Workers’ Compensation Appeals Board.  (Garcia Decl., Ex. 1, Retainer Agreement, p. 2, ¶ 3.)

Second, Defendants present a letter sent to Plaintiff on May 6, 2016.  The letter (1) reiterates that Defendants “will not be representing [Plaintiff] in any legal action other than before the Workers’ Compensation Appeals Board[,]” and (2) states that any other claims must be filed within the statutory period required by law.  (Garcia Decl., Ex. 2, ¶¶ 2, 8.)  

Third, Defendants present the declarations of defendant Garcia and Berenice Ortiz.  Defendant Garcia states in his declaration that, during his in-person meeting with Plaintiff, Garcia “reviewed the terms of the [Retainer] Agreement with [Plaintiff] and indicated that [he] would not represent him in any civil claim.”  (Garcia Decl., ¶ 3.)  Berenice Ortiz states in her declaration that (1) she attended the in-person meeting with Garcia and Plaintiff, and (2) during the meeting, “Garcia reviewed the terms of the Retainer Agreement with [Plaintiff] and indicated that he would not represent [Plaintiff] in any civil claim.”  (Ortiz Decl., ¶ 3.)

The court finds that this evidence does not show that the element of breach of duty cannot be established.  Defendants do not appear to dispute that, generally, an attorney owes a duty to his client to advise on all available remedies, including third party actions.  Defendants move for summary judgment on the ground that they satisfied this duty by making the disclosures described above.  However, Defendants do not present evidence disputing Plaintiff’s allegation that Garcia “made direct and unambiguous statements to [P]laintiff that (1) [P]laintiff did not have the possibility of pursuing a third-party claim and (2) [P]laintiff was limited to only his worker’s compensation claim.”  (FAC ¶ 4.)  Defendant Garcia does not state, in his declaration, that he did not advise Plaintiff that he did not have the ability to pursue a third-party claim and that Plaintiff was limited only to his worker’s compensation claim.  The breach of duty alleged by Plaintiff in his First Amended Complaint is based on the allegation that Defendants provided erroneous legal advice to Plaintiff by informing him that he could only pursue a claim for worker’s compensation, thereby resulting in the loss of Plaintiff’s ability to file a third-party claim for his injuries.  (FAC ¶¶ 4, 7.)  Although Defendants have produced evidence that may indicate that they properly limited their scope of representation to Plaintiff’s worker’s compensation claim, Defendants have not introduced any evidence to establish that (1) they did not advise Plaintiff that he did not have a viable third-party claim, and (2) such advice did not fall below the standard of care.

The court notes that Defendants appear to argue that Plaintiff cannot produce any evidence of the alleged comments made by Garcia because it is inadmissible under the parol evidence rule.  The parol evidence rule “provides that when parties enter into an integrated written agreement, extrinsic evidence may not be relied upon to alter or add to the terms of the writing.”  (Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1174.)  However, any evidence as to whether Garcia gave erroneous legal advice would not constitute parol evidence.  The effect of any such evidence would not be “to alter or add to the terms of” the parties’ Retainer Agreement or the May 6, 2016 letter to establish that Defendants had agreed to represent Plaintiff in a civil suit.  Although the court acknowledges that the writings advise Plaintiff that Defendants have “not undertaken to advise” Plaintiff concerning the possibility of recovering damages other than before the Workers’ Compensation Appeals Board, any evidence showing that Defendants rendered erroneous legal advice would not amount to an alteration or addition to their terms.  Instead, any evidence in support of Plaintiff’s allegation would be probative of whether Defendants advised Plaintiff as to whether he had a viable third-party claim, separate and apart from the terms of the Retainer Agreement.

The court therefore finds that Defendants have not met their burden of showing that the element of breach of duty cannot be established since Defendants (1) did not produce evidence disputing the facts supporting the breach of duty alleged by Plaintiff in the First Amended Complaint, and (2) have not presented evidence establishing that any evidence supporting Plaintiff’s contention that Defendants gave Plaintiff erroneous legal advice is inadmissible under the parol evidence rule. 

The court also finds that Defendants have not met their burden of showing that the first cause of action for professional negligence has no merit because Defendants have not shown that the element of causation cannot be established. 

Defendants contend that Plaintiff cannot establish that Defendants caused Plaintiff  damage on the grounds that Plaintiff cannot produce evidence showing that (1) Los Angeles County owned the docks and would therefore have been found liable, (2) any of the potential defendants maintained insurance that would have covered Plaintiff’s damages, or (3) Bellingham Marine’s employee was the individual who negligently handled the cleats.  Defendants argue that Plaintiff cannot produce this evidence based on his “factually devoid” discovery responses and Bellingham Marine’s Certification of No Records produced in response to a deposition subpoena.

“[A] moving defendant may rely on factually devoid discovery responses to shift the burden of proof pursuant to section 437c, subdivision (o)(2).”  (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.)  However, a “defendant must make an affirmative showing that the plaintiff will be unable to prove its case by any means.”  (Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1439.)  “[T]he defendant must in some way show that the plaintiff does not have and cannot reasonably obtain evidence of causation.”  (Id. at p. 1442.)

First, Defendants point to Plaintiff’s response to Special Interrogatory number 3 to support their argument that Plaintiff failed to “set forth any specific facts demonstrating how he would have obtained a recoverable damage award at trial.”  (Mot., p. 17:11-13.)  Special Interrogatory number 3 requested Plaintiff “state all facts which support [Plaintiff’s] contention that [Plaintiff] would have recovered damages of $1 million from the defendants named in any third party action.”  (Campo Decl., Ex. B, Special Interrogatories Set No. 1, p. 5:15-16.)  In response, Plaintiff stated that he (1) had “lost over $300,000 just in salary not to mention overtime, healthcare insurance, side work (acting as a captain and sailing instructor etc., and private yacht maintenance contracts [he] had previous to Naos employment)[,]” (2) would incur future medical expenses, (3) could obtain non-economic damages such as pain and suffering, loss of relationships, mental and emotional stress, depression, and (4) has suffered other economic damages based on loss of future employment and future medical costs.  (Undisputed Material Fact No. 19; Campo Decl., Ex. B, Special Interrogatories Set No. 1, pp. 5:18-6:2.)  Defendants contend that, based on this response, (1) there is no evidence of insurance or assets of the three putative defendants, and (2) even if Plaintiff obtained a judgment, any amount that an injured employee recovers from a third party is subject to the employer’s right of reimbursement for compensation already paid.

The court finds that Defendants have not met their burden of showing that Plaintiff’s discovery responses are so factually devoid that they establish that Plaintiff does not possess and reasonably cannot obtain evidence of causation.  First, Plaintiff’s answer to Special Interrogatory number 3 is responsive to what was asked, because it states facts supporting Plaintiff’s contention that he would have recovered damages in the amount of $1 million based on, inter alia, lost wages, future medical expenses, and non-economic damages.  Second, although Defendants contend that “there is no evidence of the insurance or assets of the three putative defendants[,]” Defendants (1) do not point to any interrogatory or other discovery response from Plaintiff establishing that Plaintiff does not possess, and reasonably cannot obtain, such evidence, and (2) rely only on Plaintiff’s response to Special Interrogatory number 3, which does not ask Plaintiff to identify any insurance held by the possible defendants.  (Def. Material Fact Nos. 12, 15, 17 [stating that Plaintiff has presented no evidence of insurance policies held by Bellingham Marine, Los Angeles County, or Los Angeles Boat Show, citing Plaintiff’s response to Special Interrogatory number 3.) 

Second, Defendants introduce the Declaration of Custodian of Records produced by Bellingham Marine to argue that Plaintiff cannot produce evidence establishing that Bellingham Marine’s employee is the individual that negligently caused Plaintiff’s injury.  (Campo Decl., Ex. C.)  Defendants served on Bellingham Marine a Deposition Subpoena for the Production of Business Records, requesting the production of “[a]ny and all records regarding the 2/24/16 LA Boat Show incident involving Michael Dunlap[,]” including accident reports, insurance records, ambulance and medical records, witness statements, correspondence, notes, and all other records regarding the incident.  (Campo Decl., Ex. C, Deposition Subpoena, pp. 1, Attachment 3.)  The responsive declaration from Bellingham Marine’s custodian of records includes a Certification of No Records and statement that Bellingham Marine “has never had any records as described in the subpoena[.]”  (Campo Decl., Ex. C, p. 1.)

The court finds that this evidence does not conclusively establish that (1) Bellingham Marine’s employee did not cause the injury, (2) Bellingham Marine was in no way liable for the injuries suffered by Plaintiff, or (3) any other putative defendant—including Los Angeles County and the Boat Show—was not or could not have been held liable for Plaintiff’s injury.

The court therefore finds that Defendants have not met their burden of showing that the element of causation cannot be established since (1) Plaintiff’s discovery responses do not “support an inference that [Plaintiff] do[es] not possess, and cannot reasonably obtain, needed evidence” to establish the causation element of his claim for professional negligence, and (2) the Certification of No Records does not establish that any putative defendant was not liable for Plaintiff’s injuries.  (Weber, supra, 143 Cal.App.4th at p. 1442.)

The court therefore denies Defendants’ motion for summary judgment as to Plaintiff’s sole cause of action for professional negligence.

ORDER

            The court denies defendants Edgardo Garcia and Edgardo Garcia Attorney at Law, Inc.’s motion for summary judgment.

The court orders plaintiff Michael Dunlap to give notice of this ruling.

IT IS SO ORDERED.

DATED:  January 25, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court